FEDERAL BUREAU OF PRISONS U.S. PENITENTIARY LEWISBURG, PENNSYLVANIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 148, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: June 14,
2006

TO: The Federal Labor Relations
Authority

FROM: RICHARD A. PEARSON

Administrative Law Judge

SUBJECT: FEDERAL BUREAU OF
PRISONS

U.S. PENITENTIARY

LEWISBURG, PENNSYLVANIA

Respondent

and Case No.
BN-CA-04-0410

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 148,
AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of
the Rules and Regula-tions, 5 C.F.R. § 2423.34(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcripts, exhibits and any
briefs filed by the parties.

Enclosures

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

FEDERAL BUREAU OF PRISONS

U.S. PENITENTIARY

LEWISBURG, PENNSYLVANIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 148, AFL-CIO

Charging
Party

Case No. BN-CA-04-0410

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Federal Labor
Relations Authority (Authority), the undersigned herein serves his
Decision, a copy of which is attached hereto, on all parties to the
proceeding on this date and this case is hereby transferred to the
Authority pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions must be filed
on or beforeJULY 17,
2006, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

1400 K Street, NW,
2ndFloor

Washington, DC 20005

_________________________________

RICHARD A. PEARSON

Administrative Law Judge

Dated: June 14, 2006

Washington, DC

OALJ 06-16

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

Washington, D.C.

FEDERAL BUREAU OF PRISONS

U.S. PENITENTIARY

LEWISBURG, PENNSYLVANIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 148, AFL-CIO

Charging
Party

Case No. BN-CA-04-0410

David J. Mithen, Esquire

For the General
Counsel

Nicole Hogan, Esquire

Ly T. Nguyen, Esquire

For the
Respondent

Tony J. Liesenfeld

For the Charging Party

Before: RICHARD A.
PEARSON

Administrative Law
Judge

DECISION

This is an unfair labor practice
proceeding under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (the Statute), and the Rules and
Regulations of the Federal Labor Relations Authority (the
Authority), 5 C.F.R. part 2423 (2005).

The American Federation of
Government Employees, Local 148, AFL-CIO (the Charging Party or
Union) initiated this case on June 2, 2004, when it filed an unfair
labor practice charge against the U.S. Penitentiary, Lewisburg.
After investigating the charge, the General Counsel of the Federal
Labor Relations Authority (the General Counsel) issued a complaint
on September 27, 2004, against the Federal Bureau of Prisons, U.S.
Penitentiary, Lewisburg, Pennsylvania (the Respondent or Agency).
The complaint alleges that the Respondent violated section
7116(a)(1) and (8) of the Statute by failing to comply with section
7114(a)(2)(A) when it conducted a formal discussion without
affording the Union the opportunity to be present.

A hearing was held in Harrisburg,
Pennsylvania, on February 2, 2005, at which all parties were
represented and afforded the opportunity to be heard, to introduce
evidence, and to examine and cross-examine witnesses. The General
Counsel and the Respondent subsequently filed post-hearing briefs,
which I have fully considered.

Based on the entire record,
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and
recommendations.

FINDINGS OF FACT

Background

The American Federation of
Government Employees, Council of Prison Locals, AFL-CIO, (AFGE) is
a labor organization within the meaning of 5 U.S.C. § 7103(a)(4)
and is the exclusive representative of a nationwide bargaining unit
of employees of the Federal Bureau of Prisons. The Charging Party
is the agent of AFGE for the purpose of representing the bargaining
unit employees at the Respondent.

The Respondent in this case is a
high security facility within the Bureau of Prisons system. Tr.
14-15. The penitentiary at Lewisburg includes units in which
inmates are housed. Tr. 15-16. At the time of the events in this
case, one of those units, "G" block or Special Management Unit
(SMU), was used for a pilot program designed to correct gang
activity within the prison system. Tr. 16, 129. Bruce Heiser was
one of eight correctional officers assigned to SMU and was
designated as the Officer in Charge (OIC).1067128339 Tr. 42. Heiser was a member of the bargaining unit
represented by the Union. At the time of the incident, Lieutenant
Rios served as the first-line supervisor of the correctional
officers assigned to SMU.204008245
Tr. 42. Their second-line supervisor was Captain Rebecca Clay and
their third-line supervisor was Associate Warden of Custody Troy
Levy. Id. The
Associate Warden, in turn, reported to Warden Joseph Smith, who at
the time of the incident in this case had been at Lewisburg for a
little over two months. Tr. 43, 126.

The focus of the complaint in this
case was a meeting that occurred between Heiser and Clay on Monday,
April 5, 2004. Prior to that meeting, Heiser had a conversation
with Warden Smith and raised a number of issues relating to the
operation and staffing of the SMU. Tr. 47, 130-31. According to
Heiser, his fellow staff on SMU had encouraged him to act as their
spokesperson and to discuss these issues with Smith. Tr. 45-46.
Although the witnesses did not offer uniform accounts as to the
circumstances under which this conversation occurred, both Smith
and Heiser indicated that it was Heiser who approached Smith and
initiated the discussion. Tr. 44-45, 130. The witnesses offered
varying accounts of the date on which Heiser talked to Smith.
Heiser testified that it occurred the Friday before his meeting
with Clay. Tr. 43, 78. Warden Smith did not really recall when it
happened. Tr. 135, 176-77. Captain Clay thought it occurred a
week or two prior to her meeting with Heiser. Tr. 233. On this
point, Heiser's testimony was the most precise. In view of the
fact that it was probably a more significant event from Heiser's
perspective than that of Smith or Clay, I find he would be more
likely to have a better recollection of the date. Also, as will be
addressed in greater detail shortly, the fact that Heiser came to
think that his meeting with Smith placed him in jeopardy of
disciplinary action (a view that neither Smith nor Clay shared)
made it more likely that he would remember the general chronology,
although not necessarily all the details, better than either of
them.

The witnesses also gave different
accounts as to where the meeting between Heiser and Smith occurred.
Smith recalled that Heiser approached him while he was making his
rounds and was in the SMU. Tr. 130, 136, 178. Heiser alluded to
going to Smith's office after calling to inquire whether the Warden
did, in fact, have an open door policy. Tr. 45, 78, 106. I find
that it is unnecessary to the disposition of this case to reconcile
the discrepancies in the accounts of the two men as to where their
meeting occurred. What is significant is that Heiser clearly
initiated it.

During his meeting with the Warden,
Heiser raised several concerns and suggestions that he had with
respect to the way in which the program in SMU was being run. Tr.
47. According to Heiser, he discussed security issues,
recreational and educational programs being provided for the
inmates, inadequate staffing, and the lack of post orders or
program statements.899449606
Tr. 47-48. Although Smith remembered that Heiser raised a number
of issues, he could only recollect one specifically: whether a
property officer was needed on SMU. Tr. 130, 157. By Smith's
account, because of his recent arrival at Lewisburg, he was unsure
he sufficiently grasped what Heiser was talking about. Tr. 130-31,
134. He recalled telling Heiser that he (Smith) needed to talk to
the Captain and Lieutenant and hear what they had to say about the
issues Heiser was raising. Tr. 134. According to Smith, he spoke
to Clay sometime within the next couple of days and told her that
Heiser had brought up some points he was unsure of. Tr. 135.
Smith asked her to meet with Heiser, listen to what he had to say,
and give Smith an assessment of Heiser's suggestions. Tr. 135.
Both Smith and Clay denied that Smith provided her with a list of
topics, either orally or in writing, to discuss with Heiser. Tr.
139-40, 193-94, 215.

The April 5, 2004
meeting

Heiser testified that when he
arrived at work at 7:30 on Monday morning, April 5, 2004, his
co-workers informed him that Lt. Rios had complained during the
weekend that he had gone over her head to the Warden, and they said
that Cpt. Clay was going to discipline him for it. Tr. 43.
According to Heiser, Rios called him at approximately 9:30 a.m. and
told him to go see Clay, but she didn't tell him what it was
about.899215874
Tr. 44.

Believing that he was facing
discipline, Heiser contacted Union steward Tony Liesenfeld, and
asked that a Union representative accompany him to his meeting with
Clay. Tr. 52. Liesenfeld phoned Clay, who told him that Heiser
was not in any trouble and would not need a Union representative.
Tr. 26-27, 195. Liesenfeld also spoke to Assistant Chief Steward
David Clark to explain the situation; Clark called Clay and
received the same answer. Tr. 27-28, 196. Heiser then spoke to
Clark himself, who told him to go see the Captain, ask for a Union
representative, and if it became a disciplinary action, to walk
out. Tr. 52-53. During the time that he was trying to obtain a
Union representative, Heiser received a call from Clay, telling him
to report to her office immediately. Tr. 53. When he said that he
didn't want to come without a representative, Clay told him he
wasn't facing any discipline and that she just wanted to talk to
him. Tr. 53, 195.

Clay testified that although she
did not view her meeting with Heiser as mandatory, Heiser had no
choice but to comply with her request, as his supervisor, to come
to her office. Tr. 220-21. Clay maintained the reason she held
the meeting in her office rather than in Heiser's work area was to
afford privacy, as the offices in SMU are small with a lot of
staff and inmate activity in and around them. Tr. 197,
222.

The accounts given by Heiser and
Clay of their meeting agreed in only a few respects. The meeting
began at approximately 10 a.m. Clay told Heiser again that he was
not facing discipline, and that the reason he was there was because
the Warden had asked her to meet with him about the matters Heiser
had previously raised in his conversation with Smith. Tr. 55-56,
198. Nobody other than Heiser and Clay was present at the meeting.
Beyond these details, the descriptions of the meeting provided by
Clay and Heiser conflict significantly.

Clay thought Heiser's belief that
he was facing discipline stemmed from existing problems between him
and the lieutenants (apparently both Rios and Knox) in his unit.
Tr. 196, 237, 250. She also stated that Heiser, early in their
meeting, told her that the main reason he had gone to Warden Smith
was to intercede on behalf of a fellow employee whose action in
placing two inmates together, when they were supposed to be kept
separated, had resulted in a fight. Tr. 199, 228-29. According to
Clay, in addition to talking for about five minutes about how
unfair it would be to discipline that officer, Heiser spent the
meeting talking about his back problems and his problems with how
the lieutenants ran things on SMU. Tr. 199-201, 229. Clay
testified that Heiser's complaints about the lieutenants and their
management of SMU were a rehash of things she had already heard
from him three or four times before. Tr. 200-02, 225, 230. By
Clay's account, she did not attempt to guide the conversation, but
simply listened to Heiser with little or no comment. Tr. 201-02,
225, 238, 252-53. Clay said she took no notes, and if she was
writing anything, she was just doodling. Tr. 202. Clay estimated
the meeting's length at about 30 to 40 minutes. Tr. 201. In this
regard, she recalls that the meeting ended before "mainline," a
term used for the inmates' lunch period, which starts at 10:45 a.m.
Tr. 203. The Warden wants his staff to attend mainline every day,
and Clay testified that she believed she was at mainline on time
that day.832764697
Tr. 203-04, 253.

Heiser, on the other hand,
described a meeting in which Clay, working from what appeared to
him to be a list on a pad in front of her, led the discussion from
topic to topic and checked things off on the list as the discussion
progressed. Tr. 70, 96, 114-16. Heiser asserted that on a number
of occasions during their meeting, he expressed the desire to be
excused to return to his unit, but Clay kept talking about things
pertaining to SMU. Tr. 70-71. In his account, both he and Clay
participated fairly equally in the discussion (Tr. 114), and he
estimated the meeting lasted more than two hours, as he didn't
return to his unit until 12:15 p.m. Tr. 70. According to Heiser,
their discussion covered the following topics: a change that
involved the removal of keys from the key rings carried by
correctional officers and other security issues; staffing and the
lack of adequate staff to run the SMU program; the need to assign a
property officer who would be responsible for monitoring and
inventorying property of inmates who were entering or leaving SMU;
staff evaluations and performance awards; and the need for post
orders and program statements. Tr. 57-63.

I find it highly unlikely that Clay
came to the meeting with a list of topics she intended to discuss
with Heiser. I credit Warden Smith's testimony that he neither
absorbed all of the subjects Heiser raised with him nor provided
Clay with any sort of list of topics she was to cover with Heiser.
More than likely, when talking to Heiser, Smith quickly decided to
refer him to a subordinate who could filter Heiser's issues and
concerns for him, and it follows that he wouldn't have attempted to
master the details of what Heiser was saying to him. This is also
consistent with the Warden's acknowledgment that he was relatively
new at the institution and was still in his learning curve. Also,
I doubt that Smith intended his open door policy to encourage
employees as a matter of course to bring issues and concerns to him
without working through his subordinates.348688073

I also find persuasive Clay's
testimony that she had a pretty good idea of what Heiser raised
with Smith based on her own prior conversations with Heiser, rather
than from any information Smith gave her.1084695922 I seriously doubt Clay bothered to prepare a list of what she
suspected she would be hearing from Heiser. Although Clay may have
had a pad of

paper in front of her during the
meeting with Heiser, I do not believe it contained any sort of
agenda for the meeting. I also credit Clay's account that Heiser
determined the course of the meeting. This is consistent with the
view, shared by both the Warden and Clay, that her role was to
listen to what Heiser had to say, and to advise the Warden what she
thought of Heiser's ideas. Given her suspicion that Heiser was
going to rehash topics he had already raised a number of times with
her, Clay would have been unlikely to want to encourage him by
taking the lead in bringing topics up; she no doubt wanted to keep
the meeting short and the number of issues discussed to a minimum.
In other words, taking the lead in bringing subjects up would have
projected a level of interest Clay just didn't have. The picture
that emerges from the record is that Clay was going through the
motions of hearing Heiser out, in response to and out of respect
for Smith's wishes, and she had no desire to invest a lot of time
or energy in the effort. I also have no doubt it was more
important to Clay to attend mainline than to sit and listen to
Heiser for a long period of time. It is impossible for me to
believe that Clay would have allowed Heiser to take up two hours of
her time on issues and ideas she was already well aware of. Given
the importance the Warden placed on his staff attending mainline, I
credit Clay's testimony that her meeting with Heiser ended before
10:45, and I find the length of the meeting was closer to the
estimate provided by Clay rather than by Heiser.

Both Smith and Clay were vague as
to what, if any, type of report Clay gave Smith after her meeting
with Heiser. Smith recalled that Clay spoke with him, and he
remembered that both Clay and Knox told him they didn't think a
property officer in SMU was necessary, but he didn't recollect any
other specifics of what Clay told him. Tr. 158, 179-80. Clay
asserted that the controversy over whether the Union should have
been represented at her meeting with Heiser served to inform the
Warden that she had carried out his instructions and met with
Heiser, and consequently no report on her part was necessary. Tr.
231. Also, what emerged from Clay's testimony was that she viewed
Heiser's ideas as unworthy of further action and related to his
discontent with the lieutenants assigned to SMU. It would have
been unlikely that Clay was eager to elevate the details of
Heiser's disputes with the lieutenants to Smith's level. Clay
would more likely have seen it as her responsibility to handle
those matters rather than passing them to the Warden. I find that
whatever report Clay gave Smith following her meeting with Heiser
was minimal.

DISCUSSION AND
CONCLUSIONS

Issues and Positions of the
Parties

The General Counsel

The General Counsel contends that
the meeting between Clay and Heiser constituted a formal discussion
within the meaning of section 7114(a)(2)(A) and alleges that the
Respondent violated section 7116(a)(1) and (8) when it failed to
provide the Union notice and an opportunity to be
represented.

Initially, the General Counsel
notes that in determining whether a meeting satisfies the
requirements of section 7114(a)(2)(A), the totality of the
circumstances are examined. According to the General Counsel, both
the totality of the circumstances and an application of the
statutory elements support a conclusion that the meeting between
Clay and Heiser was a formal discussion.

In applying the statutory elements
of a formal discussion, the General Counsel asserts that the
meeting between Clay and Heiser constituted a discussion,
regardless of whether Clay's or Heiser's description is accepted.
More specifically, the General Counsel maintains that the term
"discussion" is synonymous with "meeting" and no actual dialogue
need occur for there to be a discussion within the meaning of the
Statute. Thus, while Clay asserted that she let Heiser do all the
talking and that she didn't respond to Heiser's comments, the
General Counsel submits that even this minimal conversation
constituted a discussion. The G.C. also urges that Heiser's
version of the meeting be credited, in which Clay did engage in a
lengthy exchange of views.

Turning to the element of
formality, the General Counsel contends the meeting satisfied many
of the criteria the Authority typically looks for in ascertaining
whether a meeting is formal. In this regard, the General Counsel
points to the fact that it was held away from Heiser's worksite, in
Clay's office, and that Clay was Heiser's second-line supervisor
and a member of the executive staff at Lewisburg. The General
Counsel argues that although Heiser was given no advance notice of
the meeting, it was not a casual encounter or spontaneous shop
floor discussion but rather a meeting Heiser was ordered by Clay to
attend. The General Counsel asserts that whether the meeting
lasted 40 minutes or over 2 hours, it was of a length sufficient to
indicate formality. Regardless of whether Clay came to the meeting
with a written agenda, the G.C. submits that she indeed had a clear
one, which was to discuss Heiser's ideas for the SMU, and Clay
conceded that she knew in advance the issues Heiser would raise.
The G.C. further argues that Heiser's account of the meeting should
be credited; that Clay indeed had a written list of topics she
worked from during the meeting, and the topics she raised in the
meeting mirrored those Heiser had discussed with Smith.

The General Counsel maintains the
meeting was between a bargaining unit employee (Heiser) and
representative of the Respondent (Clay) and concerned personnel
policies and practices as well as general conditions of employment.
In this latter regard, the General Counsel asserts Heiser and Clay
discussed a number of concerns the officers assigned to SMU shared
with respect to their working conditions.

As remedy, the General Counsel
seeks a cease and desist order along with the posting of a notice
to employees signed by the Warden.

The Respondent

The Respondent denies the alleged
violation. It argues that the General Counsel failed to establish
by a preponderance of the evidence that Clay held a formal
discussion with Heiser.

With regard to the statutory
elements of a formal discussion under section 7114(a)(2)(A), the
Agency focuses on the lack of formality surrounding the Heiser-Clay
meeting; it does not dispute (at least in its brief) that the
meeting constituted a discussion between a management
representative and an employee, or that it concerned a grievance,
personnel practice or general condition of employment. In arguing
that the meeting was not formal, the Respondent contends that
Clay's relationship with correctional officers at the penitentiary
was atypical of second-line supervisors and more akin to that of a
first-line supervisor. In support of this claim, the Agency
asserts that Clay was a highly visible supervisor who interacted
daily with the correctional officers over many routine matters.
Additionally, it cites the fact that correctional officers
frequented Clay's office and the area immediately outside it, as it
was adjacent to the lieutenants' office. The Respondent further
notes that the meeting between Heiser and Clay was a one-on-one
meeting, and because Heiser often had such conversations with Clay
and Smith, he was unlikely to find it
intimidating.617090355

The Agency urges that Clay's
account should be credited over that of Heiser, with respect to the
circumstances such as the length of the meeting and what took place
there. The Respondent asserts that Clay did not require Heiser to
remain at the meeting, and it characterizes the meeting between the
two as an informal encounter that lacked an agenda or the creation
of any notes or minutes on Clay's part. Thus, in the Agency's
view, the element of formality was not satisfied, and the Union did
not need to be afforded the opportunity to attend the
meeting.

Analysis

The general issue presented by this
case is whether the meeting between Clay and Heiser constituted a
formal discussion within the meaning of section 7114(a)(2)(A) of
the Statute.

Section 7114(a)(2)(A)
provides:

(2) An exclusive representative of
an appropriate unit in an agency shall be given the opportunity to
be represented at-

(A) any formal discussion between
one or more representatives of the agency and one or more employees
in the unit or their representatives concerning any grievance or
any personnel policy or practices or other general condition of
employment[.]

In order for a union to have the
right to representation under section 7114(a)(2)(A), all the
elements of that section must be met. There must be: (1) a
discussion; (2) that is formal; (3) between one or more
representatives of the agency and one or more unit employees or
their representatives; (4) concerning any grievance or any
personnel policy or practice or other general condition of
employment. See, e.g., Department of the
Air Force, Sacramento Air Logistics Center, McClellan Air Force
Base, California, 29 FLRA 594, 597-98
(1987). In examining these elements, the Authority is guided by
the intent and purpose of section 7114(a)(2)(A), which is to
provide a union with an opportunity to safeguard its interests and
the interests of bargaining unit employees, as viewed in the
context of the union's full range of responsibilities under the
Statute. General Services
Administration, 50 FLRA 401, 404 (1995)
(GSA). This is
not a separate element of the statutory analysis, but rather a
"guiding principle that informs our judgments in applying the
statutory criteria." Id. at 404 n.3.

With respect to the first element,
the evidence establishes that the meeting between Clay and Heiser
constituted a "discussion" within the meaning of section
7114(a)(2)(A). It is well-established in Authority precedent that
the term "discussion" within the meaning of 7114(a)(2)(A) is
synonymous with "meeting," and no actual dialogue or discussion
need occur for the meeting to constitute a discussion under that
section. See, e.g., U.S. Department of
Justice, Bureau of Prisons, Federal Correctional Institution,
Bastrop, Texas, 51 FLRA 1339, 1343 (1996)
(FCI, Bastrop).
Here, there was clearly a meeting between Clay and Heiser. Even if
it was somewhat one-sided with Heiser doing most of the talking,
the amount of dialogue that may have taken place during that
meeting is irrelevant to the determination of whether the meeting
constituted a discussion under section 7114(a)(2)(A).

Neither party disputes that the
meeting was between a bargaining unit employee and a representative
of the Agency. It is clear from the record Heiser was a member of
the bargaining unit and Clay was a second-line supervisor at the
penitentiary.

With respect to the fourth
statutory element, I find that some of the matters discussed at the
meeting between Heiser and Clay did concern general conditions of
employment within SMU.328319807
In particular, the issues of security; staffing and the lack of
adequate staff to run the SMU program; the need to assign a
property officer who would be responsible for monitoring and
inventorying property of inmates entering or leaving the SMU; staff
evaluations and performance awards; and the need for post orders
and program statements, were matters affecting working conditions
and were not limited in relevance to Heiser but extended to the
other employees assigned to SMU as well. Thus, regardless of
whether Heiser raised them purely on his own or with the
endorsement of his fellow employees, the issues he presented
concerning the working conditions in SMU had more general
application within the SMU than just himself. Cf.American
Federation of Government Employees, Council 214 and U.S. Department
of the Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 38 FLRA 309, 330 (1990)
(the phrase "any personnel policy or practices or other general
condition of employment" in section 7114(a)(2)(A) involves matters
of more general scope than a discrete action relating to an
individual employee). The fact that the matters discussed were
limited to SMU do not mean the meeting did not concern "general"
conditions of employment. Authority precedent indicates that even
though a meeting concerns a relatively small component of a
bargaining unit or organization, it still meets the fourth element
of section 7114(a)(2)(A). See
GSA, 50 FLRA at 405 (discussions concerned
conditions in a single office);U.S.
Department of Defense, Defense Logistics Agency, Defense Depot
Tracy, Tracy, California,37 FLRA 952, 960
(1990) (DLA, Tracy) (meeting concerned general condition of employment of all
warehouse employees);Veterans
Administration, Washington, D.C. and VA Medical Center, Brockton
Division, Brockton, Massachusetts, 37 FLRA
747 at 748, 753 (1990) (VA,
Brockton) (meeting concerned changes in
work schedules of certain employees in Dietetic Service of medical
center).

This brings me to the question of
whether the meeting was "formal," and this is indeed the central
issue of this case. In determining whether a meeting is "formal,"
the Authority has identified the following factors as relevant:
(1) the status of the individual who held the discussions; (2)
whether any other management representatives attended; (3) the site
of the discussion; (4) how the meeting was called; (5) how long the
discussion lasted; (6) whether a formal agenda was established; and
(7) the manner in which the discussion was conducted.
See, e.g., FCI, Bastrop,51 FLRA at 1343. However, as noted inF.E. Warren Air Force Base, Cheyenne,
Wyoming,52 FLRA 149, 157 n.7 (1996), the
enumerated criteria have varied at times. In some cases an eighth
factor has been added: whether attendance at the meeting was
mandatory. See Department of Health and
Human Services, Social Security Administration, Bureau of Field
Operations, San Francisco, California, 10
FLRA 115, 118 (1982). Indeed the list is intended merely to be
illustrative, as the totality of the facts and circumstances of a
case must be considered. F.E. Warren,
supra, 52 FLRA at 157.

In this case, some of the facts
point to formality. Specifically, Clay was Heiser's second-line
supervisor, the meeting was conducted in her office, and it lasted
for a significant period of time -- at least 30 to 40 minutes.
See, e.g.,DLA, Tracy, 37
FLRA at 961 (fact that supervisor conducting the meeting was the
second-level supervisor of most of attendees was a circumstance
that can indicate formality);VA,
Brockton, 37 FLRA at 754 (fact that meeting
is held in second-level supervisor's office away from workplace is
a circumstance that can indicate formality);FCI, Bastrop, 51 FLRA at 1343, 1356
(fact that meeting lasted 25-30 minutes was a circumstance that can
indicate formality). Respondent's counsel engages in undue
hair-splitting by suggesting that Captain Clay was more like a
first-line supervisor because she spoke to correctional officers
frequently, and that her office was close to an area frequented by
employees. While Clay may have talked with employees frequently,
she was nonetheless the supervisor of their supervisor, and a
meeting with her was not a casual event. Moreover, her office was
away from where Heiser normally worked, and it had a door
separating it from the area where lieutenants and employees
gathered. However, as I will discuss more fully below, other
circumstances of this meeting do significantly mitigate the
formality that is superficially suggested by the discrepancy
between Heiser's and Clay's rank.

Although the fact that Clay called
the meeting and required Heiser to attend would tend to suggest
formality, I find the circumstances present in this case dilute
their effect as indicators of formality. As I discussed earlier,
Clay called the meeting only because Heiser had initiated a meeting
with the Warden and raised issues that the Warden asked Clay to
follow up on. It was Heiser who believed that the SMU could be
managed better and who had suggestions for doing so; it was
Heiser's ideas which the Warden asked Clay to listen to and
evaluate. Although Clay called Heiser and his lieutenant on the
morning of April 5 and told Heiser to come to her office, she was
only doing so to give him the opportunity to be heard, as he had
sought. Moreover, while Heiser initially resisted coming to Clay's
office and sought a Union representative, it was only because he
mistakenly believed he was in some sort of trouble. Once Clay made
it clear to Heiser that she simply wanted him to explain the ideas
he had presented earlier to the Warden, it was Heiser, not Clay,
who determined the course of the remainder of the meeting. In
other words, this was not a meeting called by management for a
management-driven purpose. In this regard, the circumstances here
are distinguishable from those present inFCI, Bastrop, in which the warden
directed a subordinate manager to meet with an employee and his
first-level supervisor to resolve a conflict between the two. At
that meeting, the manager then counseled both the employee and the
supervisor concerning their behavior. InFCI, Bastrop,therefore, the meeting
was called to resolve a disciplinary problem as identified by the
warden. In our case, in comparison, neither Clay nor Smith had any
direct motivation to meet with Heiser, except to allow Heiser to
express his concerns and ideas. Heiser's earlier meeting, with the
Warden, would not be considered a formal discussion within the
meaning of 7114(a)(2)A). And the meeting called by Clay on April 5
was essentially a continuation of that initial meeting between
Heiser and the Warden.

Although Clay did have a purpose
for the meeting (to listen to the ideas that Heiser had sought to
convey to Warden Smith), she did not have an agenda. Under
Authority precedent, "purpose" is distinguishable from "agenda,"
and the existence of the former does not establish the existence of
the latter. See, e.g., United States
Department of Veterans Affairs, Northern Arizona Veterans Affairs
Healthcare, Prescott, Arizona, 61 FLRA 181,
185 (2005) (VA,
Prescott). Rather, the "agenda" followed
was that of Heiser. Although the meeting was not impromptu,
neither was it called in advance. The meeting was premeditated to
the extent Clay was acting in response to Smith's direction that
she meet with Heiser and listen to his ideas; however, the actual
calling of the meeting was not planned in advance by Clay but
occurred when she heard Heiser on the radio and remembered the
Warden's request.

As for the circumstances of the
meeting itself, I have credited Clay's testimony that no notes were
taken or minutes prepared. As I have noted, after reassuring
Heiser that he was not at risk of disciplinary action and advising
him she was there to hear the ideas Heiser had previously tried to
present to the Warden, Clay played a largely passive role at the
meeting and mainly listened to Heiser. While the meeting did last
for a rather long time (30 to 40 minutes), this was due to the
issues that Heiser wished to pursue, not due to any action on the
part of Clay, who wished to keep it as short as possible.
Moreover, the meeting was a one-on-one session attended only by
Heiser and Clay, a factor that generally (although not always)
suggests lack of formality. See VA,
Prescott, 61 FLRA at 185; Department of Health and Human Services,
Social Security Administration and Social Security Administration
Field Operations, Region II, 29 FLRA 1205,
1208-09 (1987)(SSA, Region
II). Finally, it appears that any report
Clay made to Smith regarding the meeting was minimal, and verbal in
nature rather than written.

The Authority has recognized that
discussions having some of the indicia of formality are not
necessarily formal. See, e.g., VA,
Prescott, 61 FLRA at 186. In this case,
although there were some factors present that suggest formality, I
find when the totality of the facts and circumstances are
considered, the meeting was essentially an unstructured, one-on-one
meeting that occurred primarily at the initiative of Heiser
himself. I put particular significance on Heiser's initiating the
prior meeting with the Warden, as this frames the context of the
later meeting with Clay, and it further reflects that Heiser had no
hesitation about expressing his views privately, even with the
highest authority in the penitentiary. This dilutes the formality
otherwise suggested by the fact that he was meeting with his
second-level supervisor in her private office. The Authority has
similarly given significant weight to the fact that the employee
initiated the meeting;see VA
Prescott, 61 FLRA at 185;United States Department of Energy, Rocky Flats
Field Office, Golden, Colorado, 57 FLRA
754, 755 (2002);Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 9 FLRA 48, 50
(1982).

The distinction between
employee-initiated and management-initiated meetings is relevant to
the "intent and purpose" of section 7114(a)(2)(A), a "guiding
principle" in deciding such cases. When managers initiate meetings
with employees (other than routine "shop floor" conversations),
they are more likely to be considering taking a specific personnel
action, and it is in those situations that a union has an important
role to play. But when an employee enters a manager's "open door"
to make suggestions, the likelihood of agency action is more
remote, as is the union's role. This is not, of course, a rigid
rule, but simply a factor to be considered among the other
formality criteria.

Viewing all the facts and
circumstances as a whole, I find the discussion between Clay and
Heiser on April 5, 2004, was not a formal one. Because the
discussion was not formal, the meeting does not satisfy all of the
elements necessary to constitute a formal discussion within the
meaning of section 7114(a)(2)(A) of the Statute. Accordingly,
there was no obligation on the part of the Agency to afford the
Union the opportunity to be represented, and I conclude that the
Respondent did not violate the Statute as alleged. I recommend
that the Authority adopt the following order:

Although not explicitly stated in
the record, it appears that there were eight correctional officers
assigned to the SMU during the day shift. It is not clear how many
were assigned during the other shifts.

At the hearing, Heiser
characterized "post orders" as descriptions of each staff member's
assignments and responsibilities in the unit, and "program
statements" as agency policies for how a unit is to be operated.
Tr. 48, 61-62.

While Rios did not testify at the
hearing, Clay did. Clay's testimony did not indicate whether she
made the initial contact with Heiser through Rios; she only
mentioned calling Heiser directly. Tr. 194-95. While Clay may
have phoned Heiser directly at some point that morning, I find it
most likely that the initial call to Heiser came from Rios.
Particularly in view of the paramount importance of security at a
correctional institution, it is unlikely that Clay would pull
Heiser away from his post without coordinating his absence first
with his immediate supervisor. Additionally, other testimony of
Clay reflects that she valued the concept of chain of command and,
consequently, was likely to have worked through Lt. Rios. Tr.
254-55. Thus I credit Heiser's testimony that he was first told to
go see Cpt. Clay by Lt. Rios.

The Warden testified it was very
important to him that the executive staff, of which Clay was a
member, be present at mainline. Tr. 149. Consequently, it is
clear that attending mainline was a priority to Clay.